Plymouth District Magistrates’ Court, 17 May 2002
1. Ms Brackenbury (SB) is charged with wilfully obstructing the highway without lawful authority or excuse, contrary to s.137(1) of the Highways Act 1980. Existing authorities establish that the question is whether, in all the circumstances of the case, the particular use of the highway in question was unreasonable: see NAGY v. WESTON [1965] 1 WLR 280 and DPP v. JONES (MARGARET) AND ANOTHER [1999] 2 WLR 625.
2. Since the entry into force of the Human Rights Act 1998 on 2 October 2000, Convention rights can be relied upon as a defence in proceedings brought by a public authority: see s.7(1)(b) and (6)(a) of the 1998 Act and PEARCE v. GOVERNING BODY OF MAYFIELD SCHOOL [2001] EWCA Civ 1347, [2001] IRLR 669, per Hale LJ.
3. Section 6(1) of the Human Rights Act 1998 provides that “It is unlawful for a public authority to act in a way which is incompatible with a Convention right.” Under s.6(3) of the Act, “public authority” includes a court or tribunal. Accordingly, the Court has a duty not to act in a way which is incompatible with SB’s Convention rights. Furthermore, s.3(1) of the Act imposes an extremely strong interpretative obligation upon all United Kingdom courts: “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.” That obligation applies to primary legislation and subordinate legislation whenever enacted: see R v. A [2001] 2 W.L.R. 1546 per Lord Steyn at paras. 44-45.
4. SB was exercising her Convention right to freedom of expression under Article 10 of the European Convention on Human Rights: see e.g. STEEL AND OTHERS v. UNITED KINGDOM (1999) 28 EHRR 603. Accordingly, s.137(1) of the Highways Act must be read and given effect in a way which is compatible with Article 10 of the Convention.
5. Any interference by a public authority with the exercise of the right to freedom of expression (e.g. by arresting and prosecuting the individual concerned) must be justified by the State in accordance with Art.10(2) of the Convention. Therefore the Crown must discharge the burden of proving that the interference was prescribed by law and necessary in a democratic society to achieve one or more of the prescribed aims.
6. Any restrictions on such a fundamental right as the right to freedom of expression must be narrowly construed and convincingly demonstrated: see e.g. PERCY v. DPP [2001] EWHC Admin 1125, paras.16 and 27. In all the circumstances of the present case, arresting SB and prosecuting her for obstructing the highway were not “necessary in a democratic society”.
7. In view of the purpose of SB’s protest, the fact that the protest was entirely peaceful and the incompatibility of the Government’s policy concerning Trident with the United Kingdom’s obligations under international law, there is not a reasonable relationship of proportionality between the means used and the aim(s) pursued. Unlike HUTCHINSON v. NEWBURY MAGISTRATES’ COURT (9 October 2000, CO/663/00), the protest did not involve any damage to property.
8. Furthermore, the European Court of Human Rights has recognised that a democratic society is one which is characterised by respect for the rule of law: see e.g. IATRIDIS v. GREECE (2000) 30 EHRR 97, para.58. Accordingly, the legality of State action under international law must be relevant when considering whether interference with the exercise of the right to freedom of expression is “necessary in a democratic society” for the purpose of Article 10(2) of the Convention. In short, interference will not be “necessary in a democratic society” unless it can be shown to be consistent with the State’s international obligations.
9. UK Government policy concerning Trident is incompatible with the principles and rules of international humanitarian law applicable in armed conflict. This is particularly so in view of the recent statement by the Secretary of State for Defence that in appropriate circumstances the United Kingdom would be prepared to use nuclear weapons to deter attacks against British troops in the field: see the minutes of the examination of Rt Hon Geoffrey Hoon MP by the House of Commons Select Committee on Defence, 20 March 2002. Such a use of nuclear weapons would be wholly incompatible with the UK’s obligations under international law.
10. The principles and rules of international humanitarian law applicable in armed conflict were articulated and explained by the International Court of Justice in its advisory opinion on the LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS (ICJ Reports 1996, p.226, paras.74-89).
11. In its advisory opinion, which constitutes an authoritative interpretation of international law, the ICJ held that it follows from those requirements that “the threat of use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict and in particular the principles and rules of international humanitarian law”: see para.105, 2E of the dispositif. The only conceivable exception to that general rule of illegality might be “in an extreme circumstance of self-defence, in which the very survival of a State would be at stake” (ibid.). However, the Court was unable to conclude definitively whether there is such an exception to the rule (ibid.).
12. The two cardinal principles of international humanitarian law are (i) that States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets; and (ii) that it is prohibited to cause unnecessary suffering to combatants: see para.78 of the ICJ’s advisory opinion. These principles and the other fundamental rules of humanitarian law “are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law”: see para.79 of the ICJ’s advisory opinion. There is no doubt as to their customary status: see e.g. the judgment of the International Criminal Tribunal for the Former Yugoslavia in PROSECUTOR v. MARTIC, (1998) 108 ILR 40, paras.10-18, in which the Tribunal held, inter alia, that the prohibition against attacking the civilian population and the general principle limiting the methods and means of warfare constitute customary international law emanating “from the elementary considerations of humanity which constitute the foundation of the entire body of international humanitarian law applicable to all armed conflicts” (para.13).
13. These principles and rules of humanitarian law are accepted by the United Kingdom: see e.g., in relation to the NATO bombing of Yugoslavia, Hansard, HL Deb, 18 May 1999, vol.601, col.148. Furthermore, being “intransgressible principles of international customary law” they are part of English law without the need for statutory incorporation: see e.g. R v. BOW STREET METROPOLITAN STIPENDIARY MAGISTRATE, EX PARTE PINOCHET UGARTE (No.3) [2000] 1 A.C. 147.
14. Unless the interference with the exercise by SB of her Convention right to freedom of expression can be justified by the Crown in accordance with Article 10(2) of the European Convention, there is a violation of Article 10. In all the circumstances of the case, it is submitted that there is such a violation.
15. The action taken against SB also violates her right under Article 14 of the European Convention not to be discriminated against in the enjoyment of her Convention right to freedom of expression under Article 10. SB can invoke Article 14 because the facts of the case fall within the ambit of Article 10, whether or not there is a violation of Article 10 alone: see e.g. THLIMMENOS v. GREECE (2001) 31 EHRR 15.
16. According to the European Court of Human Rights, discrimination occurs where, without objective justification, a State treats persons in analogous situations differently or fails to treat differently persons whose situations are significantly different: see THLIMMENOS v. GREECE, above, para.44.
17. There is such discrimination in the present case. In particular, by arresting SB and prosecuting her for obstructing the highway, the public authorities failed to take account of the fact that the purpose of her entirely peaceful protest was to uphold the rule of law. She was protesting that Trident violates the UK’s obligations under international law, out of genuine concern for the rule of law (one of the fundamental principles on which the European Convention is founded). Her only aim was to promote the right to life (“the supreme value in the hierarchy of human rights”) and to protect people against unlawful violence in the form of nuclear weapons (cf. STRELETZ, KESSLER AND KRENZ v. GERMANY (2001) EHRR 31, paras.94 and 96)). Accordingly, her situation is significantly different from that of someone who protests that State action is undesirable (as distinct from illegal) and the public authorities should have treated her differently from the way in which they usually treat other people who obstruct the highway. It is for the Crown to show objective and reasonable justification for the authorities’ failure to treat her differently.
18. Accordingly, the Court is requested to uphold SB’s Convention rights and find her not guilty of the charge of wilfully obstructing the highway contrary to s.137(1) of the Highways Act 1980.
Nicholas Grief
Chambers of Michael Parroy QC
20 Lorne Park Road
Bournenmouth
BH1 1JN